U.S. Plans Appeal to Keep Barr’s Mueller Legal Advice Secret


The U.S. Justice Department said it would appeal a court order that it make public internal legal advice used by former attorney general William Barr in 2019 to clear then-president Donald Trump of obstruction of justice during the probe into Russia’s election meddling.

The agency should not be forced to release the findings of the Justice Department’s Office of Legal Counsel, which advised Barr on whether evidence developed by Special Counsel Robert Mueller was sufficient to establish that Trump obstructed justice, the U.S. said in a court filing late Monday.

The appeal will challenge a May 3 ruling by U.S. District Judge Amy Berman Jackson in Washington in a lawsuit filed by Citizens for Responsibility and Ethics in Washington, a watchdog group that argues Barr misled the public by claiming Mueller’s report cleared Trump. In her ruling, Jackson said the Justice Department under Trump had been less than forthcoming about the contents of the memo and said the public should see it for themselves.

Noah Bookbinder, president of the nonprofit known as CREW, blasted the Justice Department’s decision to appeal the ruling. He said the Biden administration was missing a chance to expose abuses of power at the agency under Trump.

“The Department of Justice had an opportunity to come clean, turn over the memo, and close the book on the politicization and dishonesty of the past four years,” Bookbinder said in the statement on Tuesday. “Last night, it chose not to do so.”

The Justice Department’s plan to appeal also clashes with calls by Democrats for the Biden administration to reveal Barr’s legal justification for clearing Trump. The former attorney general did so in a surprise public summary of Mueller’s highly anticipated report weeks before it was published.

‘Extraordinary Rebuke’

Jackson had ordered the department to make the legal counsel’s memo public but gave the Biden administration a chance to request a stay of the order and to provide its view on whether her decision itself should remain redacted.

Jackson said in a public version of her May 3 order that Trump’s Justice Department had provided contradictory explanations for why the memo should remain secret. She noted that Mueller issued an “extraordinary public rebuke” of Barr’s summary of his report. In its filing Monday, the Justice Department apologized for its handling of the filings and affidavits in the case.

“The court’s decision was substantially premised on the view that the government’s briefs and declarations incorrectly described the nature of the decisional process in which the Attorney General was engaged,” the department said in the filing. “In retrospect, the government acknowledges that its briefs could have been clearer, and it deeply regrets the confusion that caused.”

Even so, the government argued, part of the memo should remain secret because it’s covered by so-called deliberative process privilege. Jackson had said in her ruling that her private review of the memo made it clear that Barr had made up his mind to clear Trump before he read the memo, and that the document therefore wasn’t part of a legitimate deliberation.

Barr said he decided to clear Trump after consulting the Office of Legal Counsel and “carefully reviewing the facts and legal theories outlined in the report.”

Making the legal advice public would help reveal “the legality and reasonableness” of Barr’s conclusion, CREW said in its complaint.

The case is Citizens for Responsibility and Ethics in Washington v. U.S. Department of Justice, 19-cv-1552, U.S. District Court, District of Columbia (Washington).

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